dissenting:
I think enough appeared on the face of the instrument to admit the parol proof that the parties executing it were not to be personally bound, and the evidence is entirely conclusive to my mind that the parties sought to be charged had no intention of incurring personal obligation by ’their acts. The plaintiff also understood this perfectly well. The evidence shows lie did not himself suppose, at the time the instrument was prepared and executed, that the defendants were to be personally bound by it. So it is laid down in the books that in such case and where the party to whom the obligation is given understands the character in which the other is acting, the facts may be shown by parol with a view to relieve the latter from a claim of personal liability. It is only when there is nothing in the body of the instrument or attached to the signature to indicate that it was intended to create other than a personal obligation that such evidence becomes inadmissible. In this case the parties (lessees) are described in the instrument as “ President,” “ Vice-President,” “Secretary” and “Board of Managers” of the Garrattsville Agricultural Society and Farmers’ Olub,” and the. lands were leased “ for agricultural fair purposes.” The lease, too, ran to the officers named, and “ their successors in office,” and the instrument purported to bind “ the successors in office,” to the payment of the rent. Thus the instrument showed on its face that the officers had no personal interest in the subject-matter of the lease, and that they were acting, not for themselves, but for and in behalf of the society. But putting the case most strongly for the plaintiff, there was at least an ambiguity on the face of the instrument as to the character in which the lessees named were acting; hence parol proof was admissible to show the real and true position of the parties in the transaction; and the proof is conclusive to the effect that all of them, plaintiff and defendants, well understood that the latter were not acting for themselves, and were not intended or expected to be held personally liable as lessees. Any inference to *144the contrary, based on tlie verdict of the jury, is clearly and manifestly contradicted by the proof. To hold the defendants personally liable to the plaintiff on the facts proved in this case would, as it seems to me, be grossly unjust, and, as I think, would be contrary to law as settled by many decisions in this State. It may be, and I think the fact is, that a different rule from that above indicated exists in some of the other States. I do not deem it necessary here to collate the cases in those States, nor to mark a distinction often noted between instruments under seal and those not sealed. This distinction is without force in this State. Here, as I think, the law applicable to an instrument raising on its face a question, at least, as to the personal liability charged, is firmly settled in favor of the allowance of parol proof with a view to show the intention of the parties. This does not infringe upon the doctrine that parol evidence is inadmissible to contradict a written instrument. The following are some of the cases on which I base my conclusion: Bellinger v. Bentley (1 Hun, 562); Haight v. Sahler (30 Barb., 218); Hood v. Hallenbeck (7 Hun, 362); Lee v. Methodist Episcopal Church of Fort Edward (52 Barb., 116); Chouteau v. Suydam (21 N. Y., 181, 182); Auburn City Bank v. Leonard (40 Barb., 136); Stanton v. Camp (4 Barb., 274). That the instrument was under seal does not affect the question here under examination. A seal is presumptive evidence of a consideration, but has no such sacredness attached to it as will operate as an estoppel against proof of the truth. In several of the cases cited the instruments brought under examination were under seal. In my judgment the defendants established a complete defense on this branch of the case.
Second. It further seems to me that the proof is entirely insufficient to show a delivery of the instrument. It was distinctly agreed that the instrument should not be deemed to be delivered until signed by all the persons whose names were inserted in it as officers of the society, and until deposited in the clerk’s office fully executed. The evidence is uncontradicted in this, that Mr. Kellogg was to keep the contract in his possession, undelivered, until all the signatures were procured, and then it was to be placed in the town clerk’s office “for all the parties.” These were the terms of delivery, the conditions on the performance of which the instrument should become operative, and the plaintiff himself was a party to *145this understanding and arrangement. All the signatures were not obtained nor was the paper placed where it was agreed that it should be placed “ for the parties.” The instrument was to have no binding force unless all signed and the deposit was made. Such is the uncontradicted evidence. Indeed, the plaintiff himself testified to the fact of these conditions. Thus it seems the instrument was not to be deemed operative until executed and deposited as agreed upon by the parties to it. These conditions and terms were never performed ; and it may be added here that there is no evidence whatever that they were ever waived. Nor can it be maintained that the evidence of non-performance of the conditions was inadmissible. {Roberts v. Jackson, 1 Wend., 478; Bronson v. Noyes, 7 id., 188; Lovett v. Adams, 3 id., 380; Chouteau v. Suydam, 21 N. Y., 179, 181; The People v. Bostwick, 32 id., 445 ; in Sup. Ct., 43 Barb., 9.) The doctrine of the last case cited has been questioned {Russell v. Freer, 56 N. Y., 71; Richardson v. Rogers, 50 How., 403), but only to the extent that a promisee should not be made the victim of private understanding between the promissors of an instrument, of which understanding the former was ignorant. In this case the plaintiff knew of and indeed was a party to the agreement, that the instrument should not be deemed operative until the conditions agreed upon should be performed. Those conditions remaining unperformed, the instrument was inoperative. To allow the plaintiff to repudiate his own agreement as to those conditions would be most unjust to these defendants. It is entirely clear on the proof, as it seems to me (1), that the plaintiff himself did not understand that the defendants were to be personally liable, and that he understood that he was to look to the society for his rent; and (2) that the instrument, however it should be construed, was inoperative because of the non-performance of the conditions which were, by the understanding of the parties, to give it validity.
In my judgment the defendants are entitled to a new trial.
Judgment affirmed, with costs.